A blog by Harry Stein about public policy, with some DC sports thrown in.

The Problem with Senate Confirmation (Spoiler Alert: It’s the Filibuster)

While confirmation is an important Constitutional power of the Senate to direct and oversee policymaking, the broken rules of the Senate have turned the confirmation process into the DMV. Nominees wait indefinitely for a decision on their confirmation, and respond to endless requests for information and documents in a process that depends on the whims of every individual Senator.

If a single Senator objects to a nomination by placing a hold, the Senate has to take a vote to confirm the nominee. That’s perfectly reasonable – the Senate should vote on controversial nominees. If no other Senator shares the concerns of the Senator placing the hold, then the nominee is confirmed 99-1, the objecting Senator looks like an isolated gadfly, and the Senate moves on to other business.

Or, that’s how it should work. In practice, the Senate rules can cause a vote on a single nominee to consume multiple days of Senate floortime. The Senate functions smoothly when it works under unanimous consent, meaning all 100 Senators agree on what votes will be taken and when. If the Senator holding a nomination objects to a vote on the nominee, then the Senate is forced to use the process for stopping a filibuster, which is called “cloture.” A cloture motion requires 60 votes to be approved, but even then the rules require 30 hours of floor debate before a vote.

With scores of nominees awaiting confirmation, along with all the other business of the Senate, it is rarely worth the floortime to push through a single nominee. Unless the nomination is for a particularly important job, the nominee languishes indefinitely at the whim of a single Senator. Combine all the whims of all the Senators, and the result is a growing list of vacant leadership positions in federal agencies as the Senate fails to confirm nominees in a timely fashion (or at all).

The 60 vote threshold gets the most attention from filibuster opponents, but in many ways this 100 vote threshold is a bigger problem. Unless an issue is a particularly high priority, if it fails to reaches the 100 vote threshold, the Senate never addresses it.

The power to confirm nominees is an important tool for the Senate to influence policymaking. Confirmation hearings are an important chance for Senators to get agencies to take their questions seriously, since their nominee depends on the Senate’s support. Holding a nomination is a useful way for individual members to raise issues that they feel agencies are ignoring, as Senator McCaskill did when she held the nomination of Lt. Gen. Susan Helms due to concerns about military sexual assault.

The problem is that without an efficient process to move to a vote if a single Senator objects, that objection becomes the end of the conversation, rather than the beginning. If the Senate’s rules were fixed to address the problem of the 100-vote-threshold filibuster, the Senate would retain its Constitutional prerogative to confirm the President’s nominees, without driving the government into a rudderless drift as agencies go without Presidentially-appointed leadership.